Month: July, 2017

Sovereignty is one of those concepts that is used in similar, often overlapping, but also rather different ways by different people in different disciplines. From an international law perspective (and I know little to nothing about international law, it’s a whole different sphere of scholarship), sovereignty will be understood quite differently from how it is understood from a constitutional law perspective or from a political theory perspective – and political theorists differ in accordance with their ideology.

I tend to follow Rousseau’s view of sovereignty, which almost completely equates sovereign power with constituent power. By that definition, the Irish people are sovereign because they possess constituent power (constitutional amendments in Ireland require popular approval in a referendum), whereas, say, the Canadian people are not sovereign because they do not possess constituent power (constitutional amendments in Canada can in most cases be approved by a combination of the federal and provincial Parliaments).

This is elision of sovereign and constituent power a rather strict use of the term and many would disagree with it. Some might say, for example, that although the constituent power in Canada is held by representative bodies, those representative bodies only have legitimacy and authority because they act on behalf of the people who retain ultimate sovereignty. However, that use of the term means that sovereignty ceases to have much meaning as a matter of constitutional law, even though it might have moral and political resonance.

It is a common claim today, especially amongst supports of Scottish independence, that ‘the people in Scotland are sovereign’. That’s a moral and political claim. It is a claim with some weight behind it – being asserted by the Constitutional Convention in the Claim of Right in 1989 and reaffirmed by the Scottish Parliament in 2012. But it is not a legal claim. If we had a constitution that placed constituent power in the people (by which I mean the power to make and approve major changes to constitutional law), then that sovereignty would be given reality as a matter of constitutional law; until then, it is just an aspiration.

The connection of sovereignty to constitutional law – and again, I am following but developing Rousseau here – means that sovereignty is always vested (legitimately, as a moral claim which needs to be realised through the constitution) in the people, and never in an individual person. An individual may have rights that are constitutionally protected – rights that are recognised and enforced by ‘the people’ in their sovereign, constituent capacity – but the individual, as such, cannot be sovereign. Each citizen is an equal part of the sovereign people, but a person cannot be sovereign without there being a complete destruction of the res publica. [Of course, there are some folks who are into the idea of the ‘sovereign freeman on the land’, which is a sort of bastardised hyper-libertarian version of Lockean natural rights theory combined with an ahistorical reading of early common law, but it’s complete nonsense.]

I did my PhD at the University of Glasgow. It’s a fine University and I’m rather proud of having studied (and for some time also having taught) there.

If you visit the University of Glasgow, and stand in the middle of University Avenue, you can see in front of you the University’s Main Buildings. It looks exactly as a University should look – a gothic revival structure which, with its cloisters and dreaming spires, pays homage to the monastic roots of universities.

One of the two main quadrangles at the Glasgow University campus.

If you turn around, however, you’ll see the Boyd Orr building – a monstrosity of brutalist concrete.

One cannot contrast these two sets of images without seeing them as a visual sign of the malaise in Western civilisation in the 20th century, not only in academia, but also in wider culture and society.

It was John Ruskin, father of the gothic revival and grandfather of the arts and crafts movement, whose architectural sketches contrasted the mechanical dehumanisation of the Victorian workhouse with the humane medieval institution of monastic almshouses. The same contrast can be seen today.

On the one hand we have the gothic revival Main Building, with its lofty search for transcendence and excellence, rooted in Western Christendom. Even the University’s motto on the iron gates – ‘Via, Veritas, Vita’ (‘the Way, the Truth, the Life’) reminds us that academic life is not simply a matter of understanding or manipulating the world, but of reflecting in it God’s glory and of equipping us to play our part in the new creation that is being brought into being in Christ.

On the other, we see the grotesque product of the stark utilitarianism and positivism. One could see it as the psychological scarring of two world wars extruded into cold concrete. It is looks like what happens when we reject hope, faith, beauty and the aesthetics and values of the Christian tradition: everything turns ugly.

This architectural observation has an important bearing on the Grenfell Tower tragedy. Much of the blame for the disaster has rightly been blamed on neoliberalism. Indeed, with its cost-cutting and its outsourcing, its elevation of private profits over the common good, and its mania for deregulation, neoliberalism was at least partly responsible for the disaster.

But Grenfell Tower, like the Boyd Orr Building at the University of Glasgow, was built before neoliberalism kicked in, at the tail end of a long period during which social democracy had been the dominant mode of thought and of policy practice. Social democracy – in the particular form it took in post-war Britain – must also bear some of the blame, for having built the bloody thing in the first place.

For all its many worthy achievements, post-war social democracy was trapped in a functionalist, materialist, bureaucratic mindset – the mindset that gave rise to the Brutalist horrors, like Grenfell Tower and the Boyd Orr, which still mar our cities.

I think of the words ‘social democracy’, the image that comes to mind is of grey concrete towers. That’s not not an attractive image. I do wonder whether part of the left’s electability problem stems from that sort of aesthetic association. It’s dull, dreary, uninspiring. Certainly not aspirational.

The words ‘Christian democracy’, on the other hand, bring to mind rather different and more attractive images. If the welfare state had been built by Christian Democrats rather than social democrats, then perhaps Grenfell’s residents would not have been stacked vertically into the sky as if they had no intrinsic value. Perhaps they would have been housed in ‘Garden City’ cottages, at street level and their own front doors, with swings and flowerbeds and vegetable patches. At least, that’s how I imagine it.

If the left wants to really improve the human condition, it has to start thinking in terms of the whole person. We are not just homo faber or homo economics, but people with hearts, souls and sensibilities. Man does not live by bread alone. We need bread, yes, but also roses. Beauty, imagination, faith, tradition, belonging, a search for something bigger and better than ourselves, all have a place in the good life.

As I’ve been thinking recently about the process of constitutional change in Scotland, I’ve become convinced that there’s a need for a two-stage process.

In the first instance, there should be a Provisional Constitution, which should be put to the people ahead of the independence referendum and which should come into effect on the day of independence. This would be a safe, tried-and-tested constitution that provides stability and reassurance, while building on existing institutional structures and accepted European Human Rights law.

Secondly, after independence, there would be scope for a more participatory constitution-building mechanism, which (if people so desire, and if there is a sufficient consensus around it) might then lead to a more progressive and transformative constitution.

This is related to another conclusion: that a minimal constitution, as a safeguard and a reassurance, is not optional, but that a maximal constitution, as a transformative and aspirational instrument, is optional. The Provisional Constitution must be sufficient to do service as a minimal constitution. It’s the baseline. If we want to go beyond that, we can, but we need to have that basic guarantee of democracy and human rights in place from the outset.

I’m in the process of writing all this up in a little article that can feed into the policy process, but I have taken the liberty of drafting such a Provisional Constitution – just to provide an example of what such a constitution might look like. The intention is to be robust and thorough, on a technical level of constitutional drafting, while only deviating from existing institutional models to the extent necessary for the creation of an independent state.

I read these ‘radical’ and ‘progressive’ Christian blogs – which are deeply troubling to the brittle certainties of conservative evangelicals – and I’m left with a feeling of “Duh, yes, we’ve been believing and practicing that for several centuries.”

I want to say, “It’s fine. Come on in. The water’s lovely. Help yourself to a fair-trade organic coffee. This week we light our Peace Candle for the Lesbian Tofu-Weavers’ Co-Operative of the Upper Congo, and we invite you to remember them in your prayers as we walk with them in solidarity against patriarcho-imperialist capitalist oppression. Our opening hymn this week is number 94, ‘Bread and Roses’. Please stand if you are able to do so.”

What these progressive Christians are doing, though, is that that they are keeping Jesus, the gospel, the Kingdom of God, and Christian scripture central to the whole. I felt that the Unitarian tradition had drifted a bit too far away from that – away from a liberal, progressive interpretation of Christianity, and into something a bit syncretic and New Age-ish, which was well-meaning and good as far as it went, but ultimately a bit shallow.

“As a federalist, I believe in the federal solution which essentially means that everything domestic comes to Edinburgh, with the exception of foreign affairs, defence, large-scale economics and, I would also say, social security. An independent Scotland, however well motivated and resourced it might be, could never command the clout of the United Kingdom. I want to remain in the European Union and I want to remain in the United Kingdom. We are better together in both places.” <– Menzies Campbell, former leader of the Liberal Democrats, quoted in Cable Magazine.

Menzies Campbell completely misunderstands the nature of the crisis facing Scotland today – namely, that the possibility of having the ‘best of both worlds’, of being in both the UK and the EU, has been closed to us. If the LibDems had won the 2017 general election on a policy of reversing Brexit and introducing a federal constitution for the UK, then he might have a point, but that’s not what happened and it’s not likely to happen. England is leaving the EU, and heading for a hard and painful Brexit. The only question is whether Scotland does down with it, locked into a state that is doubling down on a unitary vision of parliamentary sovereignty. And of course the irony is that a post-Brexit UK will not have any clout at all.

In the late 19th and early 20th centuries, there were various ideas circulating for ‘imperial confederation’ of the self-governing dominions. In fact, the kernel of it was arguably already there: an imperial defence council / imperial war cabinet, integration of the armed forces in things like defence procurement and officer training, regular heads of government meetings – with a small permanent secretariat, some common rules on things like merchant shipping, more or less free movement of persons within the empire, and some progress – although not much – towards an imperial free trade zone / customs union.

For some, in a post-Brexit world, the idea of a return to, say, a Union of Commonwealth Realms, holds renewed appeal. I’m not unsympathetic to that. The idea has, in principle, much to commend it: with a common language, similar institutions, shared legal frameworks, and a lot of shared cultural heritage, such a union would be a more ‘natural’ fit, in many ways, than the European Union.

One could imagine, for example, a Commonwealth ‘Schengen’ equivalent, with free movement between the realms. Or a Commonwealth ‘Erasmus’ equivalent, enabling students to study in other countries – and, except in Quebec (and parts of Mauritius and Vanuatu), they wouldn’t even have to learn French or any other language. With the US cooling in its support for NATO and the EU looking to form a common army, there could be a Commonwealth Defence Alliance. And that’s on top of whatever free trade zone / customs union / single market might be constructed.

A Commonwealth Union would need only thin and skeletal governing institutions, managing common affairs in a simple and intergovernmental way: an annual meeting of Heads of Government providing strategic direction, a Council of Permanent Representatives making policy decisions by qualified majority voting, a Secretariat to make it all happen, and that’s about it. Other, advisory and non-binding institutional co-operation could take place through co-operative bodies that already exist: the Commonwealth Parliamentary Association and the Commonwealth Judges and Magistrates Association.

And of course, a Commonwealth Union could provide a solution to the Scottish question: status as an independent Realm within a Commonwealth Union would satisfy the nationalists, because Scotland would have as much independence as Canada or Australia – and rather more independence, in fact, than an EU member state has. The unionists would be happy because Scotland would still be part of a wider political, military and economic space that is recognisably British’ – albeit in a global rather than insular sense.

If different decisions had been taken in the 1890s or the 1920s, we might even be in such a world. But it was not to be. We are where we are. Maybe it was a good idea at the time, but we are 100 years too late for that. The British Empire, for good or ill, is over. Attempts to revive it are not only impractical but rather pathetic. The ties that bind us to our cousins across the seas are simply not strong enough to support anything more than the essentially voluntary cultural co-operation that exists in the existing Commonwealth.

The brilliant plan also rests on the assumption that the Canadians, New Zealanders, Australians, Anglophone Caribbeans, South Africans and others would want to be part of a Commonwealth Union. There’s nothing to suggest that they’d be willing to do that, or that it would be on balance advantageous to them. After all, it would separate them from their own regionally-bound trade and defence blocs.

There are other pragmatic considerations. Leaving the European Union, which has been six decades in the making, and trying to recreate some sort of Commonwealth Union from scratch would be huge project. All those infamous ‘banana rules’ would have to be re-written. We’d still need an equivalent to the ‘Social Chapter’ to protect workers’ rights, and an equivalent of the European Health Insurance Card so that, say, Australians and Canadians can use each other’s public healthcare systems without incident. That’s a lot of work. It could take decades.

So a Commonwealth Union or Union of Commonwealth Realms is perhaps a nice idea. It has a certain logic and appeal to it. But practically speaking it’s a non-starter. Like it or not, the future is European, not British. The Commonwealth connection will remain valuable, on the cultural and sporting level, but it cannot replace the EU as our primary trading bloc and primary political alliance.

This is how to be a Head of State: not to get involved in party politics, but to be a moral voice for the best sentiments of the community, and to help lead society through thinking about major issues of the common life with a degree of ethical grounding and long-term perspective. This is a lovely speech on the principles of an inclusive republic.

1. Interesting example of how worship, witness and activism are combined by a church that seeks to be a voice of justice and liberation in its community – equipping and encouraging the church to engage in civic life, and at the same time bringing a moral critique to the public square.

2. The portion from 1h32ms to 1h37ms makes clear the connection between political voice and policy choice. Similar principles apply, of course, to arrangements in the UK: if you care about any sort of policy where the interests of ordinary people should matter more and the interests of elites matter less, then you should be interested in constitutional reform. “Fix democracy first.”

On a packed train swishing north through England’s summer a stand-off simmers: passengers without seats versus a train manager with several. Just one problem: class.

Standard class is jammed. You can’t even stand. Three lost travellers squeeze into a square metre of floor by the toilet, smells and all. One of them spots that most of first class, a coffee-scented oasis spied through company-branded perspex, is empty. But her attempt to claim an unused seat is blocked by a uniform.

“You haven’t paid. If I let you sit in here it wouldn’t be fair to those who have.”

“But we have paid for a seat. There just aren’t any back there. And these ones are empty.”

“I’m sorry; there’s nothing I can do.”

A choice is made: the dignity and comfort of these toilet-dwelling passengers versus the integrity of the train’s internal class system. Their rights to a seat versus the rights of the first class passengers to feel a bit special. And, above all, a choice to assert that ‘ability-to-pay’ is sovereign.

It’s strange to me that, for all our talk about ‘freedom of choice’, arguments in favour of the status-quo are so often drawn as inevitabilities. We *must* cut government spending. We *must* sell off national assets. We *must* cap public-sector pay. There is no choice. Or else…

The ‘Or else…’ is usually tacit, but the air of bullying remains. Golems are summoned to give the threat claws: inflation, the 70s, the USSR, Venezuela, the twin demons of Debt and Deficit…or something darker, some sense that modern life faithfully reflects an immutable human core, a core obsessed down to its DNA with hierarchy, status, and personal wealth. Challenge this core- runs the logic- and you rip apart human nature.

And you don’t want to rip apart human nature for a seat on a train, do you, madam? Back to the toilets you go. Only three stops to a septic tank change. Thank you for travelling with us.

Their discomfort is not about the supply or availability of seats, or their need to sit in one. It’s a sacrifice, made deliberately, to honour a system. We are told that, without this system, we are doomed. That all possible alternatives have been tried and led to chaos. That no new ideas are conceivable. And this system must be defended at whatever human cost.

Time sitting on trains can be time for imagination; very little of that is needed to get from a door dividing first class and standard to Grenfell Tower, or to food banks, or to rough sleepers, or to vanishing services, or to whatever else. “I have the power to fix this this problem, but I mustn’t. We will all suffer if I try. Amen.”

And yet, back in standard class, a young man stands to let an old lady sit. He’s paid for his seat, too, but his legs can take it. A woman lets a stranger read her finished newspaper: the one she paid for an hour ago but no longer needs. Sips of water are shared in the heat with people who didn’t buy the bottles. Courtesy abounds…and nobody is paid for an ‘excuse me.’

It’s almost as if there are two sets of people on this train: those made of flesh and blood; and some rampaging ghosts conjured in the fuzzy glow of economic theory.